For more than forty years, the law firm of Robert B. Fitzpatrick, PLLC has been a leading force in employment law. Robert B. Fitzpatrick, PLLC is nationally recognized as a premier employment law firm. The National Law Journal describes senior partner Robert B. Fitzpatrick as among the top employment lawyers in the country. Washingtonian Magazine hails him as "tops in employment law" in the Washington, D.C. area.
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Friday, March 11, 2011

Employers increasingly are being confronted with the question of how to deal with employees who use medical marijuana, in states where its use has been legalized by the state legislature.

Jurisdictions with Medical Marijuana Statutes:

Fifteen states (Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington), as well as the District of Columbia, have statutes allowing for the use of medically prescribed marijuana, or allowing for possession of small amounts of marijuana.

Where employers terminate employees for use or possession of medically prescribed marijuana, in states where such possession or use has been legalized by the state legislature, the terminated employees have in some cases brought disability discrimination claims against the employer.So far, courts appear to be trending towards ruling in favor of the employer in such cases.See, e.g.:

Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Ore. 159 (2010). The Supreme Court of Oregon held that despite Oregon’s medical marijuana statute’s silence on the issue of employment discrimination, an employer was not required to accommodate an employee's use of medical marijuana.

Ross v. Ragingwire Telecommunications, Inc., 42 Cal. 4th 920 (2008). The Supreme Court of California held that employers were not obligated to accommodate the use of prescribed marijuana, that drug testing was legal, and that terminating an employee for marijuana use was not discrimination.

On July 7, 2010, the Board of Overseers of the Bar of the state of Maine issued an ethics opinion (Opinion # 199) on advising clients concerning Maine’s Medical Marijuana Act.The issue presented in the opinion involves “the role which Maine attorneys may ethically play because of the interplay of Maine’s new law with the Federal prohibition against the distribution of marijuana.”

The opinion examined M. R. Prof. Conduct 1.2(e), which states:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of the proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Based on that rule, the Board concluded that “[w]hile attorneys may counsel or assist a client in making good faith efforts to determine the validity, scope, meaning, or application of the law, the Rule forbids attorneys from counseling a client to engage in the business [of violating the federal prohibition against marijuana distribution] or to assist a client in doing so.”

Consolidation Coal Co. v. Local 9909, 2010 U.S. Dist. LEXIS 89035 (N.D. W. Va. 2010). The United States District Court for the Northern District of West Virginia held that an arbitrator did not exceed her authority by ordering reinstatement of a coal miner who was discharged after testing positive for marijuana.

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About Me

Robert Brian Fitzpatrick is the principal in the law firm of Robert B. Fitzpatrick PLLC in Washington, D.C. where he represents clients in employment law and employee benefits matters. Mr. Fitzpatrick has concentrated his practice in employment law disputes for over forty years. He has represented clients in individual and class actions. He has represented clients in employment discrimination, workplace harassment, retaliation, age discrimination, FMLA, ADA, whistleblower, wrongful termination, non-compete, trade secrets, Computer Fraud and Abuse Act, and wage and hour claims among others. He counsels numerous executive clients regarding employment agreements and compensation issues. He has negotiated literally thousands of severance agreements. He has represented clients in practically every industry and profession, including government employees, employees in the hospitality industry, the high tech/computer, government contractors, transportation, entertainment, sports, financial services, trade associations, and academia.

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